In connection with the construction of Plaza 61, Plaintiff secured from Defendant a builder's "all risk" insurance policy, providing for coverage as follows:

2. PROPERTY INSURED

This policy covers the property of the Insured, or the liability of the Insured for the property of others, consisting of all buildings in the course of construction, alteration or repair by the insured, including temporary structures, and materials used in construction, alteration and repair of such buildings, while in transit to the job site and while there awaiting installation.

6. THIS POLICY INSURES AGAINST

All risks of direct physical loss or damage to the insured property from any external cause except as hereinafter provided.

Plaintiff, however, need not establish theft to recover under the policy. "All risk" policies of this type extend coverage to every loss, not specifically excluded by the policy, except those caused by the wilful act of the insured. MILLER v. BOSTON INS. CO., 420 Pa. 566, 218 A.2d 275 (1966). Thus the only questions which need be decided here are whether Plaintiff has suffered a loss and, if so, whether such loss is excluded from coverage under the policy.

[loss] or damage caused by or resulting from misappropriation, secretion, conversion, infidelity or any dishonest act by the Insured or other party in interest, his or their employees or agents, while working or otherwise, or any person or persons to whom the insured property may be [entrusted.]

We are compelled to accept Defendant's interpretation of this clause. The clear intent of the language is to exclude from coverage the intentional carrying off of insured property by those entrusted with its possession in the course of construction. Majo, as general contractor, fits squarely within this exclusion.

We do not accept the proposition, asserted by Plaintiff, that the termination of the contractual relationship between Plaintiff and Majo on November 28, 1973 removes this loss from the above quoted exclusion. The mere fact that Majo had been told to vacate the site does not change this taking into a theft. Regardless of the status of the parties' legal relations on December 5, 1973, Majo had come into possession of the disputed goods as a result of its work under the construction contract and was carrying them off under a claim of right arising from that contract. This is a risk against which Defendant did not insure.

Since we conclude that this loss was not covered by the policy, we need not reach the questions, raised by Defendant, of timeliness of suit and fraudulent claim.

Summary Judgment will be entered in favor of Defendant.

R. DIXON HERMAN UNITED STATES DISTRICT JUDGE

ORDER

AND NOW, this 24th day of March, 1978, IT IS ORDERED that Plaintiff's motion for summary judgment be and it is hereby denied, and

IT IS FURTHER ORDERED that Defendant's motion for summary judgment be and it is hereby granted and entered against Plaintiff.

R. DIXON HERMAN UNITED STATES DISTRICT JUDGE

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